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Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Saturday, July 29, 2017

No blood draw without warrant unless exigency State of New Jersey v. William Smiejan,

No blood draw without warrant unless exigency
State of New Jersey v. William Smiejan, N.J. Super. App. Div. (per curiam) (7 pp.) Appellant was involved in an accident in which he struck two parked cars. While at the hospital for his injuries, a sample of his blood was taken without his consent or a search warrant; subsequent testing established his blood alcohol content was above the legal limit. Appellant moved for, and was denied suppression of the BAC evidence. The court noted there were exigent circumstances which existed because of the delays inherent in the warrant application process. On appeal, appellant argued that the seizure of his blood violated the Fourth Amendment, the Supreme Court's Missouri v. McNeelyruling applied which held that dissipation did not constitute an exigency, and ineffective assistance of counsel. The court reversed holding the trial court erred in relying upon the municipal judge's past experience as a factual basis to find the existence of an adequate exigency. The court further held there were no meaningful factual findings made by either the municipal court judge or the law division judge. Finally, the court stated that, pursuant to McNeely, the case was to be remanded to determine whether the circumstances warranted the admission of the blood draw as the trial court failed to determine under the totality of the circumstances whether exigency existed thereby negating a need for a warrant. Accordingly, the court reversed and remanded.

Source http://www.njlawjournal.com/id=1202784736777/Unpublished-Opinions-for-the-Week-of-May-1-2017?mcode=0&curindex=0&curpage=3